McSorley v Governor of Mountjoy Prison

JurisdictionIreland
JudgeO'Flaherty J.
Judgment Date24 April 1997
Neutral Citation1997 WJSC-SC 3339
CourtSupreme Court
Docket Number[S.C. No. 96 of 1996],(96/96)
Date24 April 1997

1997 WJSC-SC 3339

THE SUPREME COURT

O'Flaherty J.,

Keane J.,

Barron J.,

(96/96)
MCSORLEY v. GOVERNOR OF MOUNT JOY PRISON
AN CHúIRT UACHTARACH
IN THE MATTER OF AN ENQUIRY PURSUANT TO
ARTICLE 40.4.2° OF THE CONSTITUTION

BETWEEN:

PAUL ANTHONY McSORLEY AND MARTIN MULHOLLAND
Respondents/Applicants
.V.
THE GOVERNOR OF MOUNTJOY PRISON
Appellant/Respondent

Citations:

CONSTITUTION ART 40.4.2

ROAD TRAFFIC ACT 1961 S112

ROAD TRAFFIC ACT 1961 S56

ROAD TRAFFIC ACT 1961 S53

SHEEHAN V REILLY 1993 2 IR 81

RSC O.84

MCGLINCHEY V GOVERNOR OF PORTLAOISE PRISON 1988 IR 669

MCDONAGH, STATE V FRAWLEY 1978 IR 131

CONSTITUTION ART 40

RSC O.84 r26(4)

Synopsis:

Judicial Review

District judge imposing custodial sentence; unrepresented accused not advised to right to legal aid; High Court redress pursuant to article 40.4.2 of Constitution; whether correct redress under article 40.4.2 or by judicial review. Held: Appeal allowed; redress should be by judicial review. (Supreme Court: O'Flaherty J., Keane J., Barron J.)

McSorley and Mulholland v. Governor of Mountjoy

[1997] 2 IR 258 - [1997] 2 ILRM 315

1

24th day of April,1997, by O'Flaherty J. [NEM DISS]

2

This is an appeal brought by the governor of Mountjoy Prison from the judgment and order of the High Court (Murphy J.) of the 16th February, 1996, ordering the release of the applicants on the grounds that the governor was not entitled to detain them pursuant to warrants of execution issued from the District Court on the 4th February, 1996.

3

The sole point in the appeal is whether the learned High Court judge was entitled to make the order that he did pursuant to Article 40.4.2° of the Constitution in the peremptory enquiry contemplated by that provision, or should the complaints of the applicants have been processed by way of judicial review; and, in particular, was it right that the matter should have been decided without the district judge having been afforded any opportunity of stating his position or, indeed, the Director of Public Prosecutions.

4

The background facts to this case are as follows. Paul Anthony McSorley and Martin Mulholland were arrested in the early hours of the morning of Sunday, 4th February, 1995, in Donegal Town. They were brought to Donegal Garda Station and, ultimately, charged with various offences under the Road Traffic Act, 1961.in connection with the unlawful possession of a motor car and related offences. It seems clear that they both sought legal assistance at that stage and that the gardai made attempts to get them solicitors, but without success.

5

Garda Sergeant Kiely was in charge of the investigation and when he regarded himself as having sufficient evidence to bring the case before the District Court he arranged that the applicants should be brought before District Judge McMenamin at Donegal. A sitting of the Court was fixed for 5.00 p.m on 4th February, 1997.

6

Mr. McSorley pleaded guilty to two charges contrary to s. 112 of the Road Traffic Act, 1961, as amended and he was sentenced to six months imprisonment on each charge, the sentences to run consecutively; Mr. Mulholland also pleaded guilty and was sentenced to four terms of six months imprisonment to run consecutively on four charges contrary to s. 112, s. 56 and s. 53 of the Road Traffic Act, 1961, as amended. Two other charges were taken into consideration in his case.

7

The account given by Mr. McSorley in the course of his affidavit sworn on his own behalf as well as on behalf of Mr. Mulholland differ in a number of respects from that of Sergeant Kiely and Garda Carr as regards the course of the hearing in the District Court. For example, it was asserted that Sergeant Kiely entered the witness box and immediately told the judge of their previous convictions. This was denied by the sergeant.

8

However, the issue on which the case was decided in the High Court turned on an assertion made by Mr. McSorley that at no time were the applicants offered the service of a solicitor or asked by the judge if they wished to seek the services or advice of a solicitor.

9

The learned High Court judge accepted what counsel for the governor told him, on the basis of information provided by the sergeant then present in court, that it was so that no advice in relation to legal representation was given by the district judge to either applicant. He accepted that the failure of a judge proposing to impose a custodial sentence to advice an accused appearing before him (without representation) of his constitutional right to legal aid is such a denial of justice as to render the conviction void.

10

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12 cases
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    ...V SPECIAL CRIMINAL COURT & WARD 1999 IR 60 BARRY V FITZPATRICK & HOGAN & DPP 1996 1 ILRM 512 MCSORLEY & ANOR V GOV OF MOUNTJOY PRISON 1997 2 IR 258 KEATING V GOVERNOR OF MOUNTJOY PRISON 1991 1 IR 61 CRIMINAL JUSTICE ACT 1994 S4 CONSTITUTION ART 40 P (P) V DPP 2000 1 IR 403 CLUNE V DPP 1......
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